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State v. Velarde

Court of Appeals of New Mexico

November 20, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
LORENZO VELARDE, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett R. Loveless, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee

          Robert E. Tangora, L.L.C. Robert E. Tangora Santa Fe, NM for Appellant

          MEMORANDUM OPINION

          STEPHEN G. FRENCH, JUDGE.

         {1} Lorenzo Velarde (Defendant) appeals from five counts of criminal conviction that resulted from two separate trials regarding his participation as an accessory in a fatal drive-by shooting in the Albuquerque south valley. We reject the bulk of Defendant's arguments and affirm all but one of his convictions; reversing his conviction for resisting, evading, or obstructing an officer. In reliance on New Mexico precedent, we reject Defendant's remaining double jeopardy contentions and hold that sufficient evidence was presented at the two separate trials to support each of the jury's verdicts. We also conclude that Defendant's second trial did not subject Defendant to double jeopardy for successive prosecutions and that the district court did not commit: (1) instructional error, (2) error in permitting the State's gang expert to testify, (3) error in finding Defendant was not amenable to treatment, or (4) error in denying a new trial based on juror misconduct.

         BACKGROUND

         {2} A week prior to the shooting on October 29, 2009, Defendant had an encounter with John Valenzuela (Decedent) and Dominic Llamas, which led to a physical altercation between Defendant and Llamas. On the day of the shooting, Defendant was driving his car with Roberto Gonzales in the front passenger seat and two other passengers in the back seat. Upon seeing Decedent, Llamas, and Anthony Smith playing football on Cordelia Street, Defendant specifically pointed out one of the males in the street as someone Defendant had argued with. Gonzales then made a comment indicating that he wanted to fight someone. Subsequently, words and gang-related challenges were exchanged between Gonzales and Smith.

         {3} As Smith moved toward the car to strike Gonzales, Defendant drove away, made a turn on Bernice Street, and then drove back toward the location of the shooting on Cordelia Street. Seconds elapsed before the car driven by Defendant returned to the vicinity of Decedent, Llamas, and Smith. Defendant stopped his vehicle near a mailbox at the corner of Cordelia and Bernice Streets. When Defendant pulled up to the mailbox, Gonzales was already leaning out of the passenger window holding a firearm. Defendant cocked it, fired two shots at Smith, and fired approximately six more shots at the other individuals in the street. Gonzales fired the shots in rapid succession. Decedent was struck by two bullets and subsequently died from a gunshot wound to his chest.

         {4} After the shooting, Defendant fled from the scene at a high rate of speed. While on patrol, Deputy Hix made contact with Defendant's car, which was stopped at a stop light, by placing his vehicle by the front left corner of Defendant's car. After engaging his emergency lights, Deputy Hix opened his door to give Defendant verbal commands. Defendant backed his car up and sped forward on the dirt shoulder. After a pursuit that extended several miles, Defendant's car jumped a curb and came to a stop. Defendant immediately got out of his car and fled on foot and jumped a fence, but he was ultimately apprehended in approximately 10 seconds.

         SUMMARY OF PROCEEDINGS

         {5} Defendant was originally indicted by a grand jury on the following thirteen counts: Count 1: open count of murder (first and second degree); Count 2: conspiracy to commit murder; Count 3: felony murder; Count 4: conspiracy to commit felony murder; Count 5: shooting at or from a motor vehicle (great bodily harm); Count 6: conspiracy to commit shooting at or from a motor vehicle (great bodily harm); Count 7: shooting at a dwelling or occupied building (no injury); Count 8: intentional child abuse (no death or great bodily harm); Counts 9, 10, and 11: aggravated assault (deadly weapon) (firearm enhancement); Count 12: aggravated fleeing a law enforcement officer; and Count 13: resisting, evading or obstructing an officer.

         {6} In his first trial, Defendant was acquitted by jury verdict on Count 1, first and second degree murder, and convicted on Counts 12 and 13, aggravated fleeing a law enforcement officer and resisting, evading or obstructing an officer. The jury was unable to come to a verdict on the remaining counts, and the district court declared a mistrial.

         {7} Defendant's second trial resulted in jury convictions on Count 5, shooting at or from a motor vehicle (great bodily harm); Count 6, conspiracy to commit shooting at or from a motor vehicle (great bodily harm); and Counts 9 and 10, aggravated assault (deadly weapon) (firearm enhancement). Upon a jury finding that a firearm was used in the aggravated assaults, the district court enhanced each sentence by one year, pursuant to NMSA 1978, Section 31-18-16(A) (1993). Further, the district court merged for sentencing Count 6, conspiracy to commit shooting at or from a motor vehicle (great bodily harm) with Count 5, shooting at or from a motor vehicle (great bodily harm), imposing no sentence for Count 6. After suspension of one year and 181 days, Defendant was sentenced to 15 years in the New Mexico Corrections Department.

         DISCUSSION

         A. Double Jeopardy

         {8} We begin our analysis by reviewing Defendant's contentions that some of his convictions violate the double jeopardy clauses of the United States and New Mexico Constitutions. This Court reviews double jeopardy issues de novo. State v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289.

         {9} Double jeopardy affords a criminal defendant three types of distinct protection. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Swafford v. State, 1991-NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223 (internal quotation marks and citation omitted). This appeal, in part, relates to the third layer of protection, which has been further divided into two categories: unit of prosecution cases, "in which a defendant has been charged with multiple violations of a single statute based on a single course of conduct, " and double description cases, "in which a defendant is charged with violations of multiple statutes for the same conduct[.]" State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61. Defendant maintains that the protection against multiple punishments for the same offense bars: (1) his conviction for resisting, evading or obstructing an officer; (2) imposition of the firearm enhancements for each of the two aggravated assault convictions; (3) his conviction for conspiracy to commit ...


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